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Artillery Row

Don’t take the vapes!

Will there be no end to the government’s embrace of prohibitionism?

“This is not a freedom issue. It is no stride on the long march to serfdom”, wrote The Guardian’s Simon Hoggart of the 2007 indoor smoking ban. This line should be given pride of place in the gag reel of history next to the likes of “Peace for our time”, “Dewey Defeats Truman”, and “Devolution will kill nationalism stone dead”.

17 years on, it is government policy to outlaw disposable e-cigarettes and pursue tobacco prohibition. Clearly it is time to extinguish the term “Slippery Slope Fallacy” from our vernacular. When it comes to law and government, slipping down the slope is near-inevitable.

The 2007 ban was not the first measure of its kind. Smoking in places like offices and aeroplanes were already outlawed. What these pieces of legislation did was to enshrine the idea that peoples’ choice to consume a legal product (and allow its consumption on their own property) was fair game for state supervision in the name of “public health”.

There was, of course, an alternative that didn’t require state intervention. Venues could have been left free to choose whether to allow smoking. Workers and customers who prefer not to be around cigarette smoke would have been free to choose those which prohibited indoor smoking which would likely be a large majority of public spaces today, given that relatively few people smoke and most non-smokers strongly prefer not to be exposed to cigarette smoke. For those concerned about children, there could even have been a much narrower law mandating that public venues allowing indoor smoking must be closed off to under-18s.

Advocates of the 2007 ban brushed off the claim that it was a step onto a slippery slope. The indoor smoking ban, they argued, was about the externality of second hand smoke, not a push towards prohibition. Taking consistent principles like individual liberty and property rights into consideration would get in the way of “Evidence-Based Policymaking”.

But the government is under no obligation to base policies on evidence. If they did, they would have engaged with the rich tapestry of evidence that prohibition rarely achieves its stated goals, while always handing control of the prohibited goods or services to the black market. They would respect the overwhelming evidence that vaping is significantly safer than smoking and extremely effective in reducing smoking rates. They would learn the lessons from Australia, where rates of smoking (including among teenagers) remain stubbornly high despite (or perhaps because of) the government’s hardline approach to both tobacco and e-cigarettes.

In the public policy sphere, ideas and incentives are almost always more powerful than empirical evidence. Public health advocates in 2007 were keen to stress that prohibition was not their end goal. But the precedent was set, which made future restrictions so much easier to implement. Just take plain packaging laws as an example. Despite ASH’s promise that the idea that plain packaging for tobacco products would lead to plain packaging on other products was “patently false”, we now see the success of their campaign to do the same for vapes.

The more interventions pile up, the easier it is for the public health state to become self-sustaining — even when their interventions often fail. If government demand for research rationalising their interventions is high, there is a clear incentive to supply it. And the demand will grow, in part because bans are a comparatively easy option for politicians who want to be seen as “doing something”.

Every time the state signals its appetite for further bans and nudges, the incentive grows for lobbyists, campaign groups, and “experts” to press officials to implement the measures they want to see imposed. So too does it attract people who want to impose their public health vision on the world to apply for key roles in governments and QUANGOs.

The truth is that when we do not draw clear, consistent boundaries on state power, it creates a pretext for politicians to further trample on liberties.

Public health paternalism is not the only evidence for the inherent tendency of governments to slip down the slope. Having been implemented and repealed twice between 1799 and 1816, Sir Robert Peel imposed a 3 per cent income tax and promised it would last no longer than five years. Suffice it to say, that didn’t really go to plan. The growth of the surveillance state has marched on at pace during the War on Terror and Covid-19 pandemic. Censorship laws intended to target the most vile forms of speech have paved the way for vague and wide-ranging restrictions of unpopular political and religious opinions.

The truth is that when we do not draw clear, consistent boundaries on state power, it creates a pretext for politicians to further trample on liberties. Over time, it creates an incentive structure that makes the growth of the state self-sustaining. Once that status quo is established, no amount of evidence or policy debate can change the trajectory. This is how we end up with nonsensical crackdowns on vaping and a new front of the war on drugs in the form of tobacco prohibition.

Simon Hoggart penned the quote at the top of the article in a debate on the indoor smoking ban against the late, great Christopher Hitchens. In his argument, Hitch wrote, “It is no longer ‘about’ the protection of non-smokers. It is ‘about’ state-enforced behaviour-modification. Another and more old-fashioned name for it is prohibition.” Prophetic words indeed.

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